Rob Mitchell (McEwen, Australian Labor Party) Share this | Hansard source

I rise tonight to speak on what can only be considered one of the most bizarre pieces of legislation that I've seen in my time in this House. In this merger the government should stand up and own what it's trying to do, not hide behind a cover. Come out and be upfront with the Australian people. The government wants to abolish the Family Court as a specialised and standalone court dealing with some of the most difficult and important matters for families going through times of trouble.

From the outset, I want to say no-one thinks that the Family Court is perfect. But this incompetent government response is to say, 'Let's just abolish it.' Rather than fix it, rather than listen to experts, rather than go out and consult with people and find out what the issues are and how to address them, the government says: 'We'll just abolish it. We'll just tuck it away.' That's not helpful to many people in the seat of McEwan who find themselves dealing with family law matters, particularly during a family breakdown.

Family law has changed significantly over the last few decades. In the past, in the pre-no-fault divorce days, a spouse had to show that the other party was at fault, to have a divorce issued. That meant proving adultery, desertion, habitual drunkenness, imprisonment or insanity, for example. Thankfully, because of the Whitlam government, those days are gone. I'm glad the Attorney-General has the good sense to reaffirm his commitment to no-fault divorce, which is an unusually rational decision from the embattled minister.

The bill seeks to undo much of the groundwork that supports the Australian justice system. When the Family Law Act was passed it represented one of the great legal achievements of Australia's recent history. The Family Court was everything that family law experts said was needed. It's an essential feature that deals with family law matters, particularly those that are fraught with emotion, hurt, outrage and even violence. But Prime Minister Whitlam wanted a court that could employ all means available to it—counselling services, psychologists, welfare support officers and legal advisers, things that help families feel supported during tough times. Specialisation is not just specialist judges. The Whitlam government's vision of a specialist family law court was of a court with interrelated services and, particularly, resources. It was about creating an environment that would have regard to what Whitlam described as the human problems of couples and families, not just their legal rights.

It's clear that there are some people who feel the Family Court hasn't lived up to its potential. Whether dealing with custodial matters or issues of divorce, the court is not seen to be delivering the results the public expect of it. The government's only response to this is to abolish the court. That's not only short-sighted but cruel and completely conflicts with evidence given to the government. The problem is that, if the government cared about improving the lives of Australians appearing before the Family Court, they might have listened to the countless legal bodies and family councils that said a merger of the Family Court and the Federal Circuit Court was the wrong approach.

The Attorney-General did not undertake any meaningful consultation on his proposal to effectively remove the Family Court. He did not speak with families who have been through the courts; he did not speak with child psychologists; and, most importantly, he did not consult with the legal profession at large. If he had, he would have heard clearly from the 110 individuals and organisations that oppose this bill because they know that it will harm vulnerable children and families in need of specialist law and assistance. It will increase costs, time and stress for families in the family law system. It will place further stresses on the Federal Circuit Court judges who are already buckling under an obscene workload which gives rise to severe stress and mental and health struggles. And it fails to address any of the fundamental issues which people might have with the family law system. Both the first and the second chief justices of the Family Court have said that this proposed merger fails to understand that family law is complex and nuanced and that the quality of decisions will suffer if the merger goes ahead.

So, with almost unanimous opposition to this proposed merger, we have to ask: what evidence are the government making their decision on? As it turns out, they are basing their decision not on any advice from legal professionals but on a six-week desktop review by two accountants at PricewaterhouseCoopers—a desktop review to deliver the government the answer it wanted to its questions. So let's be straight. The government is overturning Australia's entire Family Court system because of the justification of two accountants in a six-week review, which, rightly, has been widely panned and totally discredited. It's so typical of the government: a private review of a public resource, with a meaningless report used as a slim and cynical justification to cut, merge or abolish systems. The arrogance of this government is breathtaking.

As I said, we know there are problems with the family law courts at the moment, and the main cause of those problems is not a mystery. The Australian Law Reform Commission found:

… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

The government's actions are like poking holes in the bottom of a ship and then saying, 'Oh, why's it sinking?' Over the past seven years, the story of the Australian family law system has been one of neglect, neglect and more neglect: neglect by the Liberal government led by Tony Abbott; neglect by the Liberal government led by Malcolm Turnbull; and now, in the third stage, neglect by the current Liberal government, led by Scott Morrison. Family Court and Federal Circuit Court judges have not been replaced in a timely matter. Funding has not increased in response to increasing demand and review after review—including many dozens of sensible and measured recommendations that have all been ignored.

But, instead of working to fix the family law system, the government remains determined to restructure the Family Court and Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children. The evidence from the experts is that this merger will increase costs, will increase time and will increase stress for families and children and place further stress on Federal Circuit Court judges. This is alarming. This merger will not lead to the just, quick and cheap resolution of family law disputes. Instead it's going to make matters worse for families like those living in McEwen who have been caught up in long-running, costly and emotionally devastating family law disputes.

The under-resourcing of the Family Court and Federal Circuit Court systems has had severe consequences for the backlog. The Senate Legal and Constitutional Affairs Legislation Committee, which inquired into this bill, heard evidence that two Federal Circuit Court judges, one in the Brisbane registry and one in the Wollongong registry, had over 600 cases on their dockets—600 cases for each of those judges at the same time. Three other judges had between 500 and 600 cases, and 21 had between 400 and 500. At the moment, the average number of cases for Federal Circuit Court judges is 337. We just have to consider what that means per judge—the time and energy needed to get this done in a timely manner to help people who are in a vulnerable state. It lacks any logic that the government thinks a merger is going to assist this workload.

Meanwhile, contested family law matters in the family law court are currently taking, on average, 18½ months from the date the matter is filed to the date the trial commences. In the Federal Circuit Court the average is 17½ months. This is an outrage. It is something the government should have been working to fix rather than tearing down. But that is the hallmark of this government. Tearing down and stopping are their key mantras.

In some cases it takes over two years from the date of the judgement being reserved to the date on which the judgement is finally delivered. This has serious consequences for all those involved in the family law system. It has consequences for the judges, who are buckling under the immense pressure to hear too many cases and produce too many judgements. I myself know that the workload that has been put on judges and magistrates across this nation is crippling them and impacting severely on their mental health. When looking at legislation like this we need to consider the emotional, mental and physical outcomes for judges.

There are consequences for the families before the court. They suffer from uncertainty and resentment over how long the process takes. It's cheap and easy to attack them, but the reality is that the reason we have problems and are going through this situation is that this government made a conscious decision not to fund the courts properly and give them the proper resources. This has done nothing but cause increased pain and heartache for families who are going through the process.

The bottom line is that this government's proposal will not fix the systemic problems that have occurred under its watch. We have a justice system that is crying out for help, resourcing, staffing and the support they need to do the work that everyone in this building finds so important. But what is the government's response? The government's response is simple: make it harder and more expensive for families, most of whom are already going through the worst period of their lives with a family breakdown and the problems that causes.

This is rotten legislation from a rotten government. We should not support this. Anyone on the government side with a conscience would definitely reconsider their position on this and advocate on behalf of Australian families who are going through a family breakdown. They would support them and give the courts the resources they need to do their job properly and efficiently. We should look after Australians, not leave them in limbo to get angry about decisions that are beyond their control. I urge government members to dig deep—somewhere they have a conscience—find their conscience and use it to oppose this legislation.

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